Due Process Rights and the Targeted Killing of Suspected Terrorists: The Unconstitutional Scope of Executive Killing Power

The Central Intelligence Agency (CIA), with the approval of the Obama Administration, conducts targeted killings of individual suspected terrorists. These killings have significantly increased since the Iraq war and are now a central component of U.S. counterterrorism strategy. The targeted killing program consists mainly of missile strikes from Predator drones, which are unmanned aerial vehicles operated by the CIA. In May 2010, President Obama’s National Security Council approved the targeted killing of Anwar al-Aulaqi, a U.S. citizen and suspected al-Qaeda senior leader believed to be hiding in Yemen. As the first American targeted for extrajudicial lethal force, Aulaqi’s situation quickly became a source of great controversy and concern. His father challenged this decision in federal court in December 2010, but the court ruled in favor of executive authority and awarded summary judgment to the government. Aulaqi was subsequently killed by a drone strike in September 2011. This Note challenges the asserted statutory and constitutional basis for the president’s authority to order the targeted killing of an American citizen. As the case of Anwar al-Aulaqi demonstrates, the constitutionality of targeted killing is highly suspect. To clarify the state of the law, Congress should pass legislation that either prohibits targeted killing or establishes judicial oversight.